BILL ANALYSIS
AB 2619
Page 1
Date of Hearing: May 4, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2619 (Block) - As Amended: April 28, 2010
PROPOSED CONSENT
SUBJECT: Elder OR dependent adult FINANCIAL abuse: EARNINGS
WITHHOLDING ORDERS
KEY ISSUE : IN ORDER TO PROTECT SENIORS AND DISABLED ADULTS
FROM FINANCIAL ABUSE, SHOULD PRIORITY BE GIVEN TO COLLECTING A
MONEY JUDGMENT FOR ELDER OR DEPENDENT ADULT FINANCIAL ABUSE IN
THE withholding OF the defendant's wages?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
The Elder Abuse and Dependent Adult Civil Protection Act
(EADACPA) was enacted to protect elder and dependent adults
from abuse and exploitation, including financial abuse. This
bill allows victims of elder and dependant adult financial
abuse, who are victorious in court but unable to collect the
judgment directly from the defendant, a better opportunity to
collect through wage withholding. This bill provides victims
of elder and dependant adult financial abuse priority over
other earnings withholding orders, except orders for spousal
and child support and back taxes. According to the author,
victims of elder and dependant adult financial abuse awarded a
money judgment in court have trouble collecting their damages
if the defendant has already spent the money they defrauded
from the elder or dependant adult and cannot otherwise pay the
judgment. If the defendant is employed, however, the victim
can secure a garnishment of the defendant's wages. This bill
will assist victims of elder and dependant adult financial
abuse to collect, in a timely manner, the restitution needed to
make them whole again. The bill is supported by the National
Association of Insurance and Financial Advisors of California
and there is no known opposition.
SUMMARY : Provides, effective January 1, 2012, earnings
withholding orders for victims of elder and dependant adult
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financial abuse have priority over other withholding orders,
except as specified. Specifically, this bill :
1)Provides, effective January 1, 2012, that a withholding order
for a money judgment for elder or dependent adult financial
abuse has priority over any other earnings withholding order,
except a withholding order for support and a withholding
order for back taxes. Requires an employer to withhold and
pay over the earnings of an employee pursuant to the
withholding order, unless there is in effect a withholding
order for support or taxes or a previous withholding order
for elder or dependent adult financial abuse. Requires the
employer to cease withholding and notify the levying officer
if a subsequent withholding holding order with a higher
priority is served.
2)Requires, effective January 1, 2012, that a money judgment
for financial abuse of an elder or dependent adult include
such a statement and, if only part of the judgment is based
on that financial abuse, requires the judgment to specify
what amount of the judgment was awarded on that basis.
EXISTING LAW :
1)Establishes EADACPA to protect elderly and dependent adults
from abuse. (Welfare & Institutions Code Section 15600 et
seq. Unless stated otherwise, all further statutory
references are to that code.)
2)Provides that "financial abuse" occurs when a person takes,
secretes, appropriates, obtains, or retains real or personal
property of an elder or dependent adult for a wrongful use,
or with intent to defraud, or by undue influence, or when a
person assists another in that conduct. (Sections
15610.30(a).)
3)When it is proven by a preponderance of the evidence that the
defendant is liable for financial abuse of an elder or
dependent adult, requires the court to award compensatory
damages and attorney's fees and costs. (Section 15657.5)
4)Authorizes the remedy of attachment against a defendant
liable for financial abuse of an elder or dependent adult.
(Section 15657.01.)
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5)Provides that a withholding order for support has priority
over any other earnings withholding orders, including prior
withholding orders. (Code of Civil Procedure Section
706.030.)
6)Provides that a withholding order for taxes has priority over
any other earnings withholding orders, except for a
withholding order for support, including prior withholding
orders. (Code of Civil Procedure Section 706.077.)
7)Provides that if an employer is served with two or more
earnings withholding orders, the employer is required to
comply with the first order served on the employer. (Code of
Civil Procedure Section 706.023.)
COMMENTS : EADACPA was enacted to protect elder and dependent
adults from abuse and exploitation. EADACPA recognizes that
elders and dependent adults may have disabilities and cognitive
impairments, such as Alzheimer's disease and other dementia
disorders, which often leaves them incapable of seeking help
and protection from others; and that elders and dependent
adults suffer physical impairments and poor health, conditions
that place them in a dependent and vulnerable position.
Further, legislative findings codified in EADACPA state that
cases of elder and dependent adult abuse are seldom prosecuted
as criminal matters, and few civil cases are brought in
connection with this abuse due to problems of proof, court
delays, and the lack of incentives to prosecute these suits.
Under EADACPA, an elder or dependent adult whose property is
wrongfully taken by another may bring a civil action for
financial abuse to recover the loss of the property and the
expense of hiring an attorney to bring the action.
This bill allows victims of elder or dependant adult financial
abuse, who are victorious in court but unable to collect the
judgment directly from the defendant, a better opportunity to
collect through wage withholding, by providing the victim with
priority over other earnings withholding orders, except orders
for spousal and child support and back taxes.
The author writes that this bill seeks to strengthen EADACPA
and better protect elder and dependent adults by improving
collection methods:
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Victims of elder and dependant adult financial abuse
who are awarded a money judgment in court have trouble
collecting their damages if the defendant has already
spent the money they defrauded from the elder or
dependant adult and cannot otherwise pay the judgment.
But if the defendant is employed, the victim can
secure a garnishment on the defendant's wages.
Under existing law, when an employer is served with
more than one earnings withholding order, the employer
must comply with the order entered first. If another
creditor files their earnings withholding order before
the victim of elder or dependant adult financial
abuse, the victim will be unable to collect their
judgment until the other creditor has collected all of
their money-a process that could take a very long time
depending on the size of the debt and the defendant's
paycheck. Meanwhile, the victims of elder and
dependant adult financial abuse must wait, often years
to collect the damages, attorney's fees, and costs
owed to them. . . . .
The bill would give priority to an "earnings
assignment order for elder or dependant adult
financial abuse" over any earnings withholding order,
and therefore moves victims of elder or dependant
adult financial abuse to the front of the line to
collect wages, similar to the way that spousal and
child support orders have priority over all other
earnings withholding orders. . . . This bill will
assist victims of elder and dependant adult financial
abuse to collect, in a timely manner, the restitution
needed to make them whole again.
The impetus for this bill are two of the author's constituents
who recently won a financial elder abuse lawsuit but
unfortunately were unable to collect on the judgment because
the defense counsel had first filed a withholdings order on the
defendant's wages to collect attorney's fees owed by the
defendant. According to the author, the victims were beaten
out by the abuser's attorney.
This Bill Gives Priority to Withholding Orders to Collect in
Elder or Dependant Financial Abuse Awards : The bill gives
priority to an elder or dependant adult financial abuse
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judgment that has been reduced to an earnings withholding order
over any earnings withholding order, and therefore moves
victims of elder or dependant adult financial abuse to the
front of the line to collect wages. However, recognizing the
importance of collecting child and spousal support, as well
collecting delinquent taxes, this bill rightly maintains the
existing priority scheme, which provides the top priority to
support withholding orders and the second priority to
delinquent taxes. Thus, this bill gives the third priority to
withholding orders for elder or dependant adult financial
abuse.
In order to ensure that forms for employers can be properly
updated, this bill rightly provides that the changes to the
priority for these withholding orders will be effective on
January 1, 2012.
ARGUMENTS IN SUPPORT : In support of the bill, the National
Association of Insurance and Financial Advisors of California
writes that the group is "well aware of the unfortunate reality
that elder and dependent adult financial abuse occurs and that
sometimes victims have difficulties collecting money that is
awarded to them by the court for restitution. . . . AB 2619
would assist victims, in these unfortunate situations," by
giving them priority in collecting their financial abuse
judgments.
REGISTERED SUPPORT / OPPOSITION :
Support
Consumer Attorneys of California
National Association of Insurance and Financial Advisors of
California
Opposition
None on file
Analysis Prepared by : Leora Gershenzon and Cheryl Lema/ JUD. /
(916) 319-2334
AB 2619
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